Can the police really grab your cellphone, search it and use it without a warrant if you’re arrested? Two cases in front of the Supreme Court on Tuesday seek to answer those questions, but it all may depend on what kind of phone you have.
Under prior court rulings and precedent, police can conduct a search and confiscate property at the time of arrest under limited certain circumstances. For example, police can do a search with your consent, if a threat is imminent against them, or if they feel evidence is in danger of being destroyed.
When the Framers wrote and ratified the Fourth Amendment, they ensured general privacy rights so people have the right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures … and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In some ways, modern mobile devices are “houses, papers, and effects” all rolled into one. The two cases in front of the Justices on Tuesday involve two different types of phones, seized by police under different conditions.
The cases will be heard separately. The first case, Riley v. California, involves a Samsung smartphone. The second case, United States v. Wurie, is focused on an older-generation flip phone with limited computing ability.
Both cases examine the power of the police, acting without a search warrant in certain circumstances, to look at information stored on a cellphone taken from a suspect at the time of an arrest.
In 2009, David Leon Riley was convicted of shooting at an occupied car, attempted murder, and assault with a semi-automatic weapon. He wasn’t arrested at the time of the shooting, but when he was later stopped for driving with expired license plates, police took the smartphone he had, and twice looked its contents, without a warrant.
The phone’s contents led to evidence identifying Riley as an alleged gang member, and information from the phone, including images and video, was used to convict him. Riley’s lawyers had wanted the Supreme Court to address a broader question about if the Fourth Amendment allowed police without a warrant to search “the digital contents of an individual’s cellphone seized from the person at the time of arrest.”
The Court, however, will only rule on the narrow question of whether evidence taken from the smartphone could be used at Riley’s trial.
In the Wurie case, Boston police in 2007 saw Brima Wurie make an apparent drug transaction using his car. They followed Wurie from the scene, and arrested him. Wurie was at the police station, when the officers seized two cellphones from him. One of the phones was a flip phone that was receiving calls from a number identified as from Wurie’s house.
The officers examined the phone’s call log and also saw a picture of a woman with a baby. They used the information to find the house, and gather more evidence after getting a warrant, and later said they limited their search on the flip phone to those two items.
The state’s attorneys also cited a Fourth Amendment exception known as a search-incident-to-arrest exception. This exception permits a warrantless search if it is made “to search … and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction” or used to search “the area into which an arrestee might reach in order to grab a weapon or evidentiary items.”
Wurie was convicted on felony charges and his lawyers had sought to block the use of the evidence taken from his cellphone, but initially failed.
The U.S. Court of Appeals for the First Circuit struck down two counts of his conviction and said it believed warrantless searches of cellphones are categorically unreasonable under the Fourth Amendment, and they didn’t fall under the search-incident-to-arrest exception.
The cases are being closely watched by legal observers because they will present the Justices with the challenge of relying on past Court privacy decisions, or setting a new course based on the current (and future) technology involved with communications devices.
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